How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Patrick, Esq. Your Own Question

Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 7122
Experience:  Significant experience in all areas of employment law.
60109343
Type Your California Employment Law Question Here...
Patrick, Esq. is online now
A new question is answered every 9 seconds

Hi, I was recently laid off after two months notice through

Customer Question

Hi, I was recently laid off after two months notice through WARN. Before the layoff I had tried to bring up some issues regarding a consultant to my manager related to how she was treating people with more experience and perhaps discriminating. I recently turned 40 and my manager had applied for my promotion right before that. But I happened to mention that I was planning a family after I turned 40. Right after all this, instead of taking my complaint my manager and the consultant counter complained to HR and had them interrogate me instead on a number of behavioural questions. Then they investigated on me trying to fish something, but could not find anything and gave a verbal warning letter to be put in my file. A month later they used that to add subjective comments in my appraisal even though my ratings were very high. I responded to both the comments and the letter in file. A month later they announced the layoff and said I was being RIFed after the reorg (instead of the promotion). Now they have sent a severance agreement which has a no-lawsuit clause, no rehire related clause (which means I can be rehired), and company recovering dues from me if there is breach clause. The severance pay is not much. I don't know if I have a discrimination case or not but I read on the EEOC website that I can still file a charge even if I sign the waiver and if I offer to return the severance, my case can be even more valid. But I don't know if I lose the case if the company will come after me to recover their fees and expenses. Can you please advise?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 1 year ago.
Hello and thank you for entrusting me to assist you. I am very sorry to hear that you were laid off and that your employer did not adequately investigate your complaints about poor treatment.

While I am sympathetic to your situation, unfortunately I must tell you that the facts you have described would not typically give rise to a lawsuit worth pursuing in civil court.

Contrary to what many people believe, must forms of "discrimination" or unfair treatment in the workplace are legal. Discrimination only violates the law if it is occurring on the basis of a legally "protected trait." Legally protected traits in CA include race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age (over 40), or sexual orientation.

Although you indicate you have just turned 40, you would not have a claim for age discrimination unless you could demonstrate that your age was the reason you were discriminated against at work. The fact you just turned 40 and these events preceded that does not satisfy your evidentiary burden that age was the reason you were fired.

To the contrary, if WARN applies that means a large number of other employees were laid off at the same time as you. This would seem to imply that your layoff had nothing to do with your age by was rather part of a larger financial restructuring at your company that would have occurred no matter how old you were.

If you sign a waiver of your right to sue in exchange for severance money, that agreement will most likely preclude you from taking subsequent legal action, even if you return that money. To invalidate a severance waiver, you would typically need to demonstrate that you did not enter into it knowingly or voluntarily. That is an incredibly difficult standard to meet.

To be entirely candid, if this were me I would take the severance money, however small it is, and proceed forward in looking for new employment. This being part of a mass layoff and with no compelling evidence you were fired due to being "too old," you would in all likelihood be investing money into litigation that would not be producing any sort of return for you. I hope you appreciate my honesty in this regard.

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes to you and thank you so much for coming to Just Answer.
Customer: replied 1 year ago.


Thanks for the response. I wanted to point out couple of things. I belong to a protected class, in the sense I am a female of a different national origin and the consultant was harassing three people belonging to my ethnicity. Also, the criteria for lay off was track record of three years which was in my case exemplary ratings. The incident with the warning took place right after the layoffs were announced at the company level. Also, the fact I mentioned to my manager that I was planning a family and potentially take leave, is that not pregnancy related?


 


The other thing is, I was not intending to spend money on a lawsuit. But if I file a charge with EEOC, I thought it was not going to cost me? Even if I lose in that case, I don't mind but EEOC would have investigated the case I would think. If I win also I don't mind if EEOC asks me to give back the payment, but I am worried can the employer come after me to claim damages based on the severance agreement?

Customer: replied 1 year ago.


One more point is that since the layoff, management has not been providing references or potentially not letting us be hired in eligible positions. Is there anyway to enforce anything there through the EEOC? I think these would count for outside the severance agreement if they are for the future and not the past?

Expert:  Patrick, Esq. replied 1 year ago.

Samali,

Thank you for your reply. I do understand the points you are making about being a member of a protected class, etc., but the problem is that a plaintiff bears the burden of proving their claim by a preponderance of the evidence. In other words, you must demonstrate that it is more likely than not that you would have retained your job had you not been over 40, or had not mentioned starting a family, or had not been a minority.

Right now, I am hearing speculation as to these things being the case, but I see no direct evidence. To the contrary, it would seem your layoff was inevitable since it was part of a much larger reduction in force. If you were the only one let go that would be one thing, but generally speaking, discrimination cases become nearly impossible to prove if the employer let go of other people at the same time.

You are correct that an EEOC complaint will not cost you anything. However, the EEOC rarely "takes on" cases and prosecutes them itself all the way to judgment. In most instances, they investigate and then issue a "right to sue letter" if they find cause, which will then authorize you to file a lawsuit in civil court. Thus, the EEOC itself is not a "be all end all" remedy for discrimination. Very rarely will your dispute resolve through the EEOC, and if it does, it's because the discrimination was particularly egregious and the EEOC has decided to take on the case itself.

Moreover, the EEOC will see that you signed a release and probably decline to investigate your claim all together if they conclude your release was knowingly and voluntarily signed. The case analysis won't even extend beyond that point.

I think you are overestimating how easy it is to get past a waiver of your right to sue. These waivers are signed by hundreds of employees across the country every day and they are routinely enforced by the EEOC and the courts. Again, only if you can show that you signed under duress or due to fraud of some kind will they typically be invalidated.

Sure, you can still try to bring a claim after you sign a release, and you won't have to worry about the EEOC or your employer asking you for the money back (they can't), but expect a quick denial, especially if you sign the release.

With regard to your last question, your employer is under no legal obligation to provide references or to re-hire you. You would only have a claim for discrimination if you can demonstrate specifically that your employer is doing these things because you are "too old," an ethnic minority, or due to some other protected trait. Realistically, this is just about impossible to prove and not something that would be worth pursuing, especially because you indicate that it is happening to "us," so it seems to be something your former company is doing across the board.

Again, please feel free to let me know if you have any further concerns. If I have answered your question, I would be very grateful for a positive rating of my service so that I may receive credit for assisting you.

Kindest regards.

Customer: replied 1 year ago.


Thank you for your response again.The details are quite clarifying. I would be happy to rate the responses for your credit but I do have some further questions,


Regarding the speculation you are mentioning, yes you are right I only have notes as of the dates of the incidents since I was noting everythng, and an email to my manager saying the consultant was harrassing me.


Regarding waiver and money back, what I meant was whether the employer can counter-sue or counter claim their expenses from me as soon as they find out I have filed a charge with EEOC? The waiver says, if there is a breach they can claim attorney fees from me etc.


Regarding re-hiring, I am the only one who has applied to so many positions, and probably qualified (due to my experience) for multiple positions. They even opened intern and other positions right after they eliminated my position through layoff. Is this in anyway retaliation of the layoff or discrimination?


Lastly, I can still revoke my waiver if I want to within today, and even if I don't want to sue (like you said it will cost too much), will it help with just having EEOC look into this, and possibly alert the employer (the company is very big) on what their individual managers did and possibly get me something (either rehired, or compensated)?

Expert:  Patrick, Esq. replied 1 year ago.
Samali,

I am more than happy to address your followup concerns.

"Regarding waiver and money back, what I meant was whether the employer can counter-sue or counter claim their expenses from me as soon as they find out I have filed a charge with EEOC? The waiver says, if there is a breach they can claim attorney fees from me etc."

Perhaps your employer would attempt to argue otherwise, but I do not believe that an attempt to sue for discrimination would constitute a "breach" of your severance agreement because, in order to successfully sue, you are relying on the fundamental assertion and premise that the waiver of your right to sue is VOID. If the waiver is void, you cannot "breach" the agreement by suing--the very definition of void means that the provision has no force or effect. Therefore, I do not believe any claim for "expenses" or breach of contract could be asserted against a plainitff who sues notwithstanding they signed a waiver.

This is not to say you'd get very far with a lawsuit, but simply that the chances of successfully being sued for "breach of contract" is extremely small.

"Regarding re-hiring, I am the only one who has applied to so many positions, and probably qualified (due to my experience) for multiple positions. They even opened intern and other positions right after they eliminated my position through layoff. Is this in anyway retaliation of the layoff or discrimination?"

It is not illegal for an employer to favor new hires over formerly laid off personnel. In order to have an actionable claim, you have to demonstrate that you are not being hired because of your race, religion, gender, age, etc., as noted above. Discrimination claims based on a failure to hire are extremely difficult to win. This is because employers are afforded vast discretion with regard to who they choose to hire.

"Qualifications" are highly subjective and can be anything the employer desires. Qualifications do not consist solely of relevant experience and education. They can consist of intangibles, such as people skills, attitude, and the fact you were a former employee--basically anything the company finds important, for whatever reason. If your company doesn't want to hire former employees, that in itself is perfectly legal. Unfair? Quite possibly. But illegal? No.

Lastly, I can still revoke my waiver if I want to within today, and even if I don't want to sue (like you said it will cost too much), will it help with just having EEOC look into this, and possibly alert the employer (the company is very big) on what their individual managers did and possibly get me something (either rehired, or compensated)?

If you signed a waiver, the EEOC won't even look into the issue of discrimination if they find your waiver is enforceable. The first thing they will do is investigate whether you knowingly and voluntarily signed the severance. Unless you have compelling reasons why you didn't, that will be the end of their road for any investigation into your claim. They just receive too many complaints to devote resources toward an investigation into discrimination where a valid waiver prevents any legal action.

Again, I hope that this addresses your concerns and wish you the very best moving forward. I would also be tremendously grateful if you would take a moment to rate the service I have provided thus far.

Best wishes.
Customer: replied 1 year ago.


Thanks for the response again,


In the first question, I was referring to just simply "filing a charge with EEOC" and not as far as a lawsuit, where my employer can claim a breach or counter sue me if I have a waiver signed?


On the last point, I think you misunderstood the question. The situation was pertaining to "if I revoked the waiver" which means I would have not signed it at all.

Customer: replied 1 year ago.


Also let me know if the notes and the email that I mentioned above count for anything. Thank you.

Expert:  Patrick, Esq. replied 1 year ago.
Samali,

Thank you for your clarification.

"In the first question, I was referring to just simply "filing a charge with EEOC" and not as far as a lawsuit, where my employer can claim a breach or counter sue me if I have a waiver signed?"

My answer remains the same. No lawsuit for breach of contract since you would be pursuing a claim on the theory that the contract itself is void.

"On the last point, I think you misunderstood the question. The situation was pertaining to "if I revoked the waiver" which means I would have not signed it at all."

Thank you for your clarification. I do believe I misunderstood. Of course, you aren't going to ever be bound by an agreement you don't sign, but if you don't sign, you also aren't going to get the severance money.

If you don't sign the waiver, the EEOC will look into your complaint and conduct a preliminary investigation into your allegations.

Also let me know if the notes and the email that I mentioned above count for anything. Thank you.

To be blunt, they create an extremely weak circumstantial case for discrimination. However, since you were part of a mass layoff, this would not be enough to overcome your evidentiary burden of proof, typically speaking.

I hope this clarifies and very best of luck to you.
Patrick, Esq., Lawyer
Satisfied Customers: 7122
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 1 year ago.


One question - Even if the layoff cannot be proven as being related to any discrimination, is it not valid complaint that the discrimination itself was there. Basically the primary incident being the one where I tried to report something to my manager related to discrimination or ethics and was retaliated against etc. with the HR interview and false allegations on me. I was laid off later but the fact that I was subjected to the incident while being an employee, does it not allow me to complain against my employer irrespective of the termination aspect? And I am within the statute of limitations so to speak to report that also, looks like. Is there any hostile work environment that applies there or do I have to be an active employee for that?

Expert:  Patrick, Esq. replied 1 year ago.
The statute of limtiations for unlawful discrimination or harassment is one year from the date of its occurrence. It is illegal to retaliate against an employee who complains about unlaful harassment, but without tangible damages there is no point in bringing a claim because what would a court award? Unless you can connect your termination or some other quantifiable financial loss to the adverse employment action, there are no damages to pursue.

Hostile work environment claims must arise from conduct you endured as an employee.

Good luck to you.
Customer: replied 1 year ago.


Thank you for responding. I can understand where you are alluding. I am just trying to see, for both types of claims they were endured when I was an employee and if I was to continue in the employment without being laid off, wouldn't the damages have been about the emotional stress, defamation, not being promoted etc. as well as a remedy of the situation by action against the involved people or something?


If something is unethical but not illegal, does that complaint also go to EEOC?

Expert:  Patrick, Esq. replied 1 year ago.
A claimant alleging hostile work environment is entitled to damages for emotional distress if the harassment relates specifically to a protected trait (i.e. racial slurs were used against you) and was sufficiently "servere or pervasive" so as to change the essential terms of employment.

This is a very high standard and I dont' foresee it being met by the conduct you describe. If you recovered any damages for emotional distress, they would likely be less than your litigation costs, and so not worth pursuing. Furthermore, you'd be putting your mental state at issue, which would make relevant intimate details of your personal life (your employer would be entitled to argue that the "distress" you are complaining of was caused by other things), resulting in a significant intrusion to your privacy.

"If something is unethical but not illegal, does that complaint also go to EEOC?"

No. The EEOC hears only those matters relating to unlawful discrimination as I have defined it above.
Customer: replied 1 year ago.

Hi, thank you again for the answers. It looks like I don't gain much by disputing the terms of the layoff. If I sign the waiver to get as much money as possible, I wanted to make sure I am waiving rights for only the past and not the future (in case there is retaliation during rehiring process). Is it possible for you to advise me on that? I have pasted the pages of the agreement below,


 

Customer: replied 1 year ago.


It did not take the pages looks like, is there anyway I can email you a four page scan? My name is XXXXX XXXXX on the document.


 

Expert:  Patrick, Esq. replied 1 year ago.
Samali,

We are verging into a new question now, which would technically require you to start a separate question thread according to site rules.

That said, I can tell you here that no agreement as a matter of public policy can operate to strip you of your right to bring claims for discrimination or other legal violations which have not yet occurred. Such agreement would effectively give employers carte blanche authority to violate any law they saw fit, since the employee had already waived any and all ability to sue.

Waivers can only operate to waive claims for past conduct. That is unequivocal.

If you have any further questions, please open a new question and I will be happy to assist you there. I hope this helps and good luck.
Customer: replied 1 year ago.

Thank you for the answer. I have just posted another question to you to look at the document but I am having trouble somehow attaching anything to these message windows.

Expert:  Patrick, Esq. replied 1 year ago.
Thank you for your reply. I will take a look at your other question, but as a warning, neither I nor any other attorney on this website can perform general a severance "review"and advise you generally of your rights, as that would constitute "legal advice" in violation of the terms of service of Just Answer and the rules of my state bar.

This i a question and answer site where we can provide general information about the law that may apply to your circumstances. Accordingly, I am happy to answer any specific questions you may have about your severance agreement or the legal implications of a particular provision, but I cannot review the whole thing and provide general advice.

I apologize for this limitation but I look forward to continuing to assist you to the best of my ability.
Expert:  Patrick, Esq. replied 1 year ago.
Thank you. Please see my comment to you that I posted on your other question with regard to the limits of the service I can provide through this site.

I you have specific questions about your severance agreement, I can answer those, but I cannot provide general review or advice-giving services.

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C. Freshfield, Liverpool, UK
 
 
 

Meet The Experts:

 
 
 
  • LawTalk

    Attorney

    Satisfied Customers:

    933
    I have 30 years of experience in the practice of law, including employment law and discrimination law.
< Last | Next >
  • http://ww2.justanswer.com/uploads/LA/LawTalk/2012-6-6_17379_LawTalk.64x64.JPG LawTalk's Avatar

    LawTalk

    Attorney

    Satisfied Customers:

    933
    I have 30 years of experience in the practice of law, including employment law and discrimination law.
  • http://ww2.justanswer.com/uploads/MU/multistatelaw/2011-11-27_173951_Tinaglamourshotworkglow102011.64x64.jpg Tina's Avatar

    Tina

    Attorney

    Satisfied Customers:

    857
    JD, 16 years experience & recognized by ABA for excellence in employment law.
  • http://ww2.justanswer.com/uploads/PI/PIExpert/2012-7-1_152453_Attorney.64x64.jpg Brandon, Esq.'s Avatar

    Brandon, Esq.

    Lawyer

    Satisfied Customers:

    332
    Has received a certificate of recognition from the California State Senate for his outstanding legal service.
  • http://ww2.justanswer.com/uploads/PH/phoenixrising119/2012-7-26_11214_043.64x64.jpg melissamesq's Avatar

    melissamesq

    Attorney

    Satisfied Customers:

    47
    Represent clients to maximum recovery in employment cases.
  • http://ww2.justanswer.com/uploads/IG/Iggy1001/2013-11-20_23344_JApic.64x64.jpg Joseph's Avatar

    Joseph

    Lawyer

    Satisfied Customers:

    3511
    Extensive experience representing employees and management
  • http://ww2.justanswer.com/uploads/JK/jkiani22/2013-11-18_15348_JacobKiani1copy2.64x64.jpg jkiani22's Avatar

    jkiani22

    Attorney

    Satisfied Customers:

    24
    Attorney
  • /img/opt/shirt.png Legal Counsel's Avatar

    Legal Counsel

    Lawyer

    Satisfied Customers:

    32
    California Licensed Attorney- 29 years- Wages, Hours, Overtime, Discrimination, Wrongful Termination.
 
 
 

Related California Employment Law Questions